The Americans with Disabilities Act (“ADA”) generally prohibits discrimination in the employment setting based upon an employee’s disability. However, there are other areas of the ADA which should concerns businesses. Title III of the ADA specifically prohibits discrimination on the basis of a disability in the activities of “places of public accommodation”. A place of public accommodation generally includes places of public gathering, sales or rental establishments and service establishments. Stripped to the basics, a place of public accommodation can be thought of as a business that offers goods and services to the public. For example, grocery stores, hotels, restaurants and shopping centers are places of public accommodations.
When the ADA was first enacted in 1990, the internet as we know it today did not exist. Now, companies and businesses are at a great competitive disadvantage if they do not offer their products through carefully molded websites. The U.S. Department of Justice has just issued notice of proposed rule making sessions designed to address public service website accessibility by disabled individuals. The DOJ has noted that companies often fail to incorporate or provide features on their websites to enable individuals with disabilities to fully access the goods or services. The DOJ has emphasized that website accessibility standards need to address different types of disabilities (blindness, low vision, deafness, deaf/blind and physical impairment). Exactly what public comment or how long it will be before new rules and regulations are put out by the DOJ surrounding the ADA and website accessibility is anyone’s guess.
The more important question concerns whether or not a website itself or any other internet delivered service qualifies as a “public accommodation” under the ADA. Some courts hold that the ADA applies only to physical spaces. Other courts have found that the ADA applies to the internet where the website serves as a gateway to brick and mortar stores, such as a retail store’s online website. Recently a court has ruled that the ADA’s accessibility requirements apply to website only businesses. The court found that limiting the ADA’s protections only to tangible places and physical structures would frustrate the purpose of the ADA. The ADA must evolve as technology does to serve all individuals with a disability in their accessing of public accommodations.
The implications of the DOJ’s proposed rule making, as well as the tide in the courts that hold the ADA’s “public accommodations” protection may extend to internet only website businesses or retail websites in general can be staggering. Will websites be required to have close captioning for videos? Will brightness controls and volume buttons be required to evolve into something very different than we know today. If on-line businesses are to comply with the ADA there will certainly be compliance costs going forward. Businesses should begin educating themselves on this issue and keep a close eye on future developments.
With over 30 years’ experience in advising employees and businesses on labor and employment issues and business concerns, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing business law landscape. Call Bill Boznos today at (630) 375-1958.